Trentstone Pty Ltd v Moranbah North Coal Pty Ltd

[1995] QSC 188

IN THE SUPREME COURT
OF QUEENSLAND
  Originating Application No. 485 of 1995
Brisbane

Before  Justice Moynihan

[Trentstone Pty Ltd v. Moranbah North Coal Pty Ltd & Anor]

BETWEEN:

TRENTSTONE PTY LTD

Applicant
AND:

MORANBAH NORTH COAL PTY LTD

First Respondent

AND:

NEIL DALE
  MINING REGISTRAR  Second Respondent

AND:

FRANK WINDRIDGE
  WARDEN, WARDENS COURT  Third Respondent

JUDGMENT - MOYNIHAN J.

Judgment delivered:  25/07/1995

Counsel:H. Fraser QC and J.D. Batch for the Applicant

J.D. Muir QC and P. Ambrose for the First Respondent
  P. Flanagan for the Second and Third Respondents

Solicitors:  Thompson King and Connolly for the Applicant
  Clayton Utz for the First Respondent
  Crown Solicitor for the Second and Third Respondents

Hearing date:               19/07/95
IN THE SUPREME COURT

OF QUEENSLAND

Originating Application No. 485 of 1995

Brisbane

Before Justice Moynihan

[Trentstone Pty Ltd v. Moranbah North Coal Pty Ltd & Ors]

BETWEEN:

TRENTSTONE PTY LTD

Applicant
AND:

MORANBAH NORTH COAL PTY LTD

First Respondent

AND:

NEIL DALE
  MINING REGISTRAR  Second Respondent

AND:

FRANK WINDRIDGE
  WARDEN, WARDENS COURT  Third Respondent

JUDGMENT - MOYNIHAN J.

Judgment delivered:  24/07/1995

This is an application for judicial review, the outcome of which bears on proceedings to take place on 25 July.  Whatever might appear from the material, it has come to be determined essentially on the basis that a Mining Warden erred in law in not regarding himself as bound to apply certain provisions of the Magistrates' Court Act 1921 and Rules in circumstances to which I will now turn.
           The applicant is a land owner in respect of whose land the first respondent seeks a mining lease.  The second respondent is perhaps joined in error for the Registrar of the Wardens Court, but nothing turns on that.  The third respondent is the Mining Warden who made the decision it is sought to review.  The second and third respondents appeared by counsel to abide the outcome of the proceedings.
           Pursuant to the provisions of the Mineral Resources Act 1989 ("the Act") the grant of a mining lease is not finalised until the Minister is satisfied that compensation has been settled by agreement or determined by the Wardens Court. If no agreement is filed within three months of the date of the Warden's recommendation, the Mining Registrar is to refer the matter to the court for a determination. Any person who could be party to an agreement for compensation may apply in writing to the Registrar of the Wardens Court to have the Warden determine the amount of compensation, and the terms, conditions and times of payment. The Warden's Court authorised to hear and determine matters referred to it. These matters are apparent from s. 7.36(1) and (3) and 7.38(1), (2) and in particular (3) of the Act.
           By letter dated 9 June 1995 the first respondent applied to the second respondent to have the Mining Warden determine the issue of compensation.  By an apparently undated notice received by the applicant on 21 June 1995, the Registrar of the Wardens Court notified that from  25-27 July inclusive had been set aside for the determination of compensation. 
On 29 June 1995 the first respondent applied to the Wardens Court to have the hearing dates vacated and for directions. The matter was argued before the Warden who received both written and oral submissions on 30 June. The Warden refused the application for what was in effect an application for an adjournment on 30 June and published his reasons. In his published reasons the Warden stated that there were no directions to issue, although his statement that the parties "should exchange valuations at least five days prior to the hearing" may reasonably be regarded as approaching a direction. He said, that by virtue of the provisions of s. 7.38(3) of the Act discovery "may be a non-event".
           So far as directions are concerned, the Warden did not regard direction as being required, whether because he understood that requirement to be postponed or because he thought that they were not necessary in the particular case, is not altogether clear.  As to the former, counsel for the applicant, before the Warden at one stage of submissions, had spoken of seeking directions later.  I accept he did not abandon seeking directions.  His remark was probably postulated on an adjournment having been granted.  As to the latter, it may be noted that in his reasons for refusing an adjournment, the Warden adverted to the fact that there were stalemated negotiations in the course of which there had been valuation material put forward and a rejected offer.  The inference being that the parties knew what was in issue.  The Warden too had in mind the terms of s. 7.38 which dealt with the basis on which compensation might be ordered.
The applicant's contention that the Warden erred in law by not regarding the Magistrates' Court action rules as applicable to the proceedings is founded on s. 10.24 of the Act. Sub-section (1) of that section provides that the "proceedings taken, forms used, and manner, time and place of hearing and determining matters within the jurisdiction of a Warden's Court shall be as prescribed." Sub-section (2) authorises the making of rules of court for the purpose of regulating practice and procedure in the Wardens Court and it is common ground that none have been made. Sub-section (3) provides:

" Where in relation to any matter of practice and procedure this Act is silent or does not prescribe sufficiently, such practice and procedure shall be, as nearly as may be, in accordance with the practice and procedure of Magistrates Courts exercising jurisdiction under the Magistrates Courts Act 1921 the provisions of which Act and the rules made thereunder shall in such case apply, with all necessary adaptations, with respect to proceedings before a Wardens Court and where in relation to any matter of practice or procedure that Act and those rules make no provisions or inadequate provision the practice and procedure of a Wardens Court shall be, as nearly as may be, the practice and procedure of the Supreme Court."

It is to be noted that s. 10.28(2) provides that proceedings before a Wardens Court are to be commenced by plaint in a prescribed form and manner, but determination of compensation is specifically accepted from the operation of this provision.
The applicant contends that as a consequence of the operation of s. 10.24(3) the Magistrate was bound to hold that the provisions of r. 45 (as to a plaint), r. 46 (as to a statement of particulars) and r. 47 (as to a summons) of the Magistrates Court Rules applied. It was then contended that the Magistrates Court Rules relating to the filing of a defence, a reply, discovery and inspection, certificate of readiness and notice of trial applied.
The respondent having applied to the Mining Registrar to have the Wardens Court determine the amount of compensation, the court was authorised to hear and determine the compensation issue and became seized of the matter; s. 7.38(1) and (2). The applicant was, it may be accepted, entitled to notice of the hearing, and, (as it may be accepted) to have it adjourned if a proper basis for doing so was made out to the Warden's satisfaction. The applicant had notice of the hearing and had the opportunity to argue an adjournment. The applicant sought directions but those were not given in circumstances to which I have referred. There was no insufficiency of procedure in terms of s. 10.24(3) requiring recourse to the Magistrates Courts Act and Rules pursuant to s. 10.24(3).
In any event, proceedings before the Wardens Court in respect of compensation are judicial matters (see s. 10.15-10.25 inclusive of the Act). The application for adjournment was not of an administrative character in terms of s. 4 of the Judicial Review Act.  Sections 20-23 of that Act apply only to administrative decisions and the Warden's decision could be challenged only if it could previously have been challenged by means of a prerogative writ.  It has not been demonstrated that the Warden erred in refusing an adjournment, or for that matter, or in not giving direction, assuming he is to be taken as having refused to do so.  Perusal of his reasons shows that he had regard to the matters advanced by the applicant in support of an adjournment and direction, but in the balance of relevant consideration, they did not prevail.
           The application should be dismissed.